Citation Nr: 1208708
Decision Date: 03/07/12 Archive Date: 03/19/12
DOCKET NO. 09-12 889 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for a left rotator cuff tear (originally claimed as a left shoulder disorder).
2. Entitlement to service connection for an umbilical and ventral hernia.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
Carole R. Kammel, Counsel
INTRODUCTION
The Veteran had active military service from May 1966 to May 1968. The Veteran was awarded the Purple Heart Medal and Combat Infantryman's Badge (CIB).
This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and September 2009 rating decisions of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). By those rating actions, the RO denied service connection for a rotator cuff tear of the left shoulder (originally claimed as a left shoulder disorder) and umbilical and ventral hernia, respectively. The Veteran appealed the above-cited rating actions to the Board.
The issue of entitlement to a separate rating for residuals of a gunshot wound to the right chest other than a scar has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.
The issue of entitlement to service connection for umbilical and ventral hernia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part.
FINDING OF FACT
The evidence does not show that the Veteran's rotator cuff tear of the left shoulder had its onset during military service, or is otherwise etiologically related thereto.
CONCLUSION OF LAW
The criteria for establishing service connection for a rotator cuff tear of the left shoulder have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).
Duty to Notify
Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). See also Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004).
In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id.
With regard to the claim for service connection for a rotator cuff tear of the left shoulder, VA provided the veteran with pre-adjudication notice on the Pelegrini II VCAA elements in an October 2007 letter. The letter told him to let VA know of any evidence he thought would support the above-cited claim, that it was his responsibility to make sure that VA received all requested records not in the possession of a Federal entity, and told him where to send what "we need."
In addition, the United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Via the above-cited letter, VA provided the Veteran with the notice requirements as promulgated in Dingess.
In Pelegrini II, the Court also held that VCAA notice should be given before an initial agency of original jurisdiction (AOJ) decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. The veteran was provided pre-adjudication VCAA notice via the October 2007 letter. Id.
Duty to Assist
Regarding VA's duty to assist the Veteran with the instant claim, relevant service treatment records (STRs), service personnel records (SPRs) and post-service VA examination and clinical treatment reports, along with statements of the Veteran and his representative, have been associated with the claims file.
In July 2008, a VA examiner provided an opinion as to the etiology of the Veteran's rotator cuff repair of the left shoulder. A copy of the examination report is of record.
The Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of his claim of entitlement to service connection for rotator cuff repair of the left shoulder.
II. Merits Analysis
The Veteran seeks service connection for rotator cuff tear of the left shoulder.
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Service connection may also be granted for arthritis when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011).
In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999).
The law provides that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b) (West 2002). The Veteran's DD Form 214 shows that he received the Purple Heart Medal and CIB. Therefore, participation in combat is established and the Veteran is entitled to the presumptions at 38 U.S.C.A. § 1154(b). However, the Court has held that 38 U.S.C.A. § 1154 does not lighten the evidentiary requirements for competent evidence demonstrating present disability or a nexus between present disability and some remote injury or disease of active service. See Cohen (Douglas) v. Brown, 10 Vet. App. 128, 138 (1997) ("[s]ection 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition").
The Veteran seeks service connection for a rotator cuff tear of the left shoulder. He contends that his left shoulder disorder is the result of having to dig foxholes and sleep on the ground while assigned to a combat unit during active military service in the Republic of Vietnam (RVN). (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in October 2007). He maintains that he was treated by medics for his left shoulder during service. The Veteran contends that he has experienced left shoulder pain ever since he was discharged from military service in May 1968. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in October 2007).
As discussed above, the Veteran's DD Form 214 shows that he received the Purple Heart Medal and CIB. Therefore, his in-service injury to the left shoulder is conceded. Thus, the salient issue herein is whether the Veteran's current rotator cuff tear of the left shoulder is etiologically related to the inservice injury to the left shoulder.
The Board finds the Veteran's statements as to having had left shoulder pain since service discharge to be competent; however, the Board also finds that such statements are not credible. In an October 2007 statement to VA, the Veteran indicated that he had experienced left shoulder pain ever since he dug foxholes and slept on the ground while assigned to a combat unit during active military service in the RVN. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in October 2007). However, the Veteran's service treatment records did not reflect complaints of or treatment referable to the left shoulder. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by the veteran). Significantly, a March 1968 service separation examination report reflects that the Veteran's upper extremities were evaluated as "normal." On an accompanying Report of Medical History, the Veteran denied any painful or "trick" shoulder or elbow. On DA Form 3082-R, Statement of Medical Condition, the Veteran stated that there had not been any change in his medical condition. Although VA has conceded inservice injury to the left shoulder, the Veteran's assertions of inservice treatment for his left shoulder pain conflict with his service treatment records and his inservice denials of symptoms. As such, the Board finds the Veteran's assertions of treatment for left shoulder pain during service not credible.
The Veteran did not assert, nor does the evidence of record support, a finding that he continuously experienced left shoulder pain since military service. See Clyburn v. West, 12 Vet. App. 296, 302 (1999) (holding that continuity of symptomatology may be established if a veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology).
Post-service VA treatment and examination reports fail to document complaints, treatment, or diagnoses of a left rotator cuff tear for decades after the Veteran was discharged from active duty service in 1968. The first instance wherein the Veteran complained of any left shoulder pathology was when he sought treatment at a VA clinic in August 2007. At that time, the Veteran stated that he had had a long-standing "'several year'" history of left shoulder pain that had increased over the previous six (6) to eight (8) months. The Veteran denied any trauma to the left shoulder. At that time, a magnetic resonance imaging (MRI) scan of the left shoulder revealed a small full thickness tear of the anterior margin of the supraspinatus tendon. The examining clinician's impression was, in part, left supraspinatus tear. This extensive post-service period without complaints, treatment, or diagnoses referable to the left shoulder is evidence against continuity of symptomatology, and it weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).
To the extent that the Veteran asserts that his current rotator cuff tear of the left shoulder is related to his active duty service, the Board finds that the preponderance of the evidence is against the claim. There is only one medical opinion that addresses the etiology of the Veteran's left rotator cuff tear and it is against the claim. In a July 2008 opinion, a VA examiner opined, after a review of the claims file, to include the above-cited STRs, that the Veteran's left shoulder rotator cuff tear is not related to his active military service. The VA examiner based her opinion on the following: (i) an absence of evidence in the Veteran's STRs, to include his service separation examination in 1968; and (ii) an absence of any formal medical treatment for his left shoulder for 39 years after he was discharged from service in 1968 until he was seen by VA in 2007.
The July 2008 VA examiner's opinion is corroborated by the evidence of record and is against the claim. The examination report is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for her opinion, and there is no reason to believe that the July 2008 VA examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This opinion is against the claim and is uncontroverted.
The Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a rotator cuff tear of the left shoulder and, thus, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b) Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
ORDER
Service connection for a rotator cuff tear of the left shoulder is denied.
REMAND
A determination has been made that the claim of entitlement to service connection for an umbilical and ventral hernia needs to be remanded for additional substantive development in accordance with the directives outlined in the indented paragraphs below.
The Veteran seeks service connection for an umbilical and ventral hernia. He contends that his umbilical and ventral hernia is the result of having to carry heavy tools and a M-79 grenade launcher with heavy ammunition while on active duty in the Republic of Vietnam. (See June 2009 statement from the Veteran to the RO and VA Form 9, received by the RO in September 2010). As indicated in the decision above, the Veteran has been awarded the Purple Heart Medal and CIB for his combat service in the RVN. Thus, his reports of having to carry a M-79 grenade launcher with heavy ammunition during combat while on active duty in the RVN are consistent with the circumstances of his combat service. See 38 U.S.C.A. § 1154(b) (West 2002). A February 2009 VA treatment note contains a diagnosis of umbilical and ventral hernia. A May 2009 VA treatment note reflects that the Veteran had undergone ventral/umbilical hernia repair one month previously (April 2009).
Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, in view of the Veteran's current diagnosis of a ventral/umbilical hernia and the circumstances of his combat service of having to carry heavy tools and ammunition during combat in the RVN, the Boards finds that a VA examination is necessary to determine the etiology of the above-cited disability.
Accordingly, the case is REMANDED for the following action:
1. Copies of updated treatment records should be obtained and added to the claims file.
2. Following completion of the above, schedule the Veteran for a VA examination to determine the nature and extent of his umbilical/ventral hernia. The examiner must review the claims file and note that such review was undertaken in the examination report. Any indicated tests or diagnostic studies should be undertaken.
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's postoperative umbilical/ventral hernia is the result of a disease or injury in active service, to include having to carry heavy tools and ammunition during his combat service in the RVN.
The examiner should presume that the Veteran carried heavy tools and ammunition during his combat service in the RVN. The examiner should also note the report in a May 2009 VA treatment record that the Veteran had undergone ventral/umbilical hernia repair in April 2009.
The examiner is advised that the Veteran is competent to his symptoms and history, and such reports, including those of a continuity of symptomatology, must be specifically acknowledged and considered in formulating any opinions.
If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so.
The examiner should provide reasons for any opinion expressed.
A complete rationale must be provided for all opinions expressed. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).
3. To help avoid future remand, the RO/AMC must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998).
4. After the above development is completed and any other development that may be warranted, the RO/AMC should readjudicate the claim for service connection for an umbilical/ventral hernia. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs